Mr BILLSON (Dunkley) (17:46): I rise to support the coalition's position of being in favour of the Tobacco Plain Packaging Bill 2011 in this second reading stage and with some thoughtful and well-considered amendments in the consideration in detail stage and to oppose the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011. Tobacco smoking is the largest preventable cause of disease and premature death in Australia. When in government the coalition acted decisively to address the prevalence of smoking in Australia. The former coalition government presided over the biggest ever fall in smoking to a prevalence rate of 16.6 per cent for people over the age of 14, giving our nation one of the lowest smoking rates in the world. As the health minister in the former coalition government, Tony Abbott introduced the current graphic health warnings that cover 30 per cent of the front and 90 per cent of the back of cigarette packaging.

The coalition has always supported and will continue to support sensible measures to reduce smoking rates. That is relevant because in this debate the Minister for Health and Ageing and some government members have sought to characterise the coalition's position as being somewhat less than committed to a coordinated and considered effort to reduce rates of smoking in Australia. The minister herself has gone so far as to suggest that the coalition's position is being dictated by big tobacco—a statement I found offensive and that the record shows is untrue. That has created a very difficult atmosphere for this discussion and for considered debate on what additional steps we as a nation need to take to reduce smoking rates amongst young people particularly and amongst those who have found their addiction very difficult to shake over many years.

Particularly frustrating for those on the coalition side is that it seems that whenever the government was in trouble it would reannounce its plain-packaging tobacco measures. It was as if they would say: 'We're in trouble. Break the glass. Talk about tobacco.' That did not assist in a thoughtful and considered debate on the merit of these measures and created an atmosphere where it was very difficult to have sensible discourse on what else might be done or what finetuning might be worthwhile to a broad plain-packaging initiative.

I reiterate that the coalition has a proven track record with regard to tobacco control and reducing smoking rates. I will not go over all of the measures that have been canvassed by previous speakers, but they include the initiatives of Robert Menzies, the Fraser government and Dr Michael Wooldridge, who was an indefatigable advocate for action to reduce smoking rates, and the broader work of the Howard government in terms of reforming cigarette taxation and advertising the graphic health warnings. Even when in opposition the coalition first proposed an increase in the tobacco excise in 2009—a measure that was later adopted by the government. That is the record of the coalition and any suggestion that the coalition is soft on tobacco companies is just plain nonsense and completely unsupported by the facts.

We are faced now with what to do next. What considered action will see a further reduction in rates of smoking uptake and smoking prevalence? There is no one straightforward solution that will do the trick. A coordinated strategy is what is required. Also we can look internationally to see that a concerted strategy can achieve results, but action without thought can actually produce unintended results. In some jurisdictions, where a coordinated strategy has not been introduced, illegal tobacco, chop-chop, has found a bigger market share.

That brings us to the bills before the chamber today. There is the effort to introduce plain packaging, as it is characterised in the Tobacco Plain Packaging Bill, and also a second bill that is mainly to do with the potential of this action to offend trademark obligations. We are opposing the second bill relating to trademark amendments because there needs to be an outstanding argument put forward as to why a regulation should trump a piece of law. The government has failed to make that case, and that is why the coalition will oppose that bill. We do so in that there are certain protections available to people in relation to their property right and more broadly property in section 51 of the Australian Constitution. Where those protections are violated there should be consequences.

The government have repeatedly said that they have taken account of those constitutional issues and have also taken account of the TRIPS agreement and are on 'robust and strong legal ground'—I think those are the words—to proceed down the course they are proposing. We would like to accept on face value those reassurances, but this is difficult because we cannot actually access this legal advice to see whether or not it is more political speak from the government, which has used as a political strategy this issue that was once pursued in a bipartisan spirit. We have not seen that legal advice to learn how robust and dependable it is. What is interesting is that the bill seeks to ensure that, if there is some offending of the acquisition and property on just terms, it then has a consequence as to the application of the bill. That setup seems to point to some legal doubts about the strength of the advice the government has received and, as I said earlier, the concept that a regulation should trump a piece of statute is something that should be avoided wherever possible. That is why the opposition will be opposing the trademarks amendment bill. We do not think the case has been made for that action where regulation made by a minister could override the Trade Marks Act itself. That is an exceptionally uncommon cause of action and, because the coalition have not been privy to the legal advice that the government aims to rely upon, we find that course of action quite dubious. We believe that, if the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 is necessary, there should be other action considered and the minister should not have the power to simply override the Trade Marks Act through regulation if he or she feels that is the way to go.

On the broader question of the plain-packaging measure I have been alarmed at the lack of engagement between the government and the small business community. I was troubled by the fact that a very legitimate range of concerns have been raised by small retailers as to the impact of this measure on their business and on their costs of doing business but no-one in the Gillard government seemed to be interested in those points of view. It does carry forward a history of the Rudd-Gillard government not really taking small business seriously and that is reflected in the fact of 300,000 jobs being lost in the sector since the Labor government was elected.

But here is another example where the Commonwealth led by a Labor government seems to think it knows best and legitimate concerns are just brushed aside as if they are immaterial and not worthy of proper consideration. Not only has the minister displayed that kind of dismissive attitude but even the parliamentary inquiry process seemed to go out of its way not to engage with the small business community, particularly small business retailers, about their legitimate concerns.

The coalition has listened to those concerns and the amendment proposed by my friend and very capable shadow parliamentary secretary Dr Southcott seeks to address some of those concerns as they relate to the storage and stock management of tobacco products. This activity is a long way away from the point of sale—in back storerooms. Stock control and management, the ready identification of what tobacco products are at hand and what needs to be ordered, should be facilitated by the kind of amendment that the opposition has proposed—that is, a marking on one of the two smaller packaging surfaces for cartons so that small businesses can properly manage their stock.

I still believe that there should be scope to more genuinely address a broad range of small business concerns but it is clear that the government is just not interested in doing so. The small business community have contacted me and raised a very legitimate range of issues. I will just touch on those briefly. Then I will come back to the motivation for this measure and show how I thought there was scope for common ground to be found but there needs to be an appetite by the government to engage in a sensible conversation. Sadly, that appetite is not present.

The small business community, particularly the retailers, are the meat in the sandwich of most of the tobacco control measures. We have already seen many small business retailers having to adapt to display bans. A decision was made that there needed to be, in many cases, a refitting of the shop presentation and point of sale so that tobacco products were not visible to people when they entered retail premises. As I understand it that was aimed at not activating a spontaneous desire to buy tobacco—someone fills up their motor vehicle, goes in to pay, sees a whole bunch of cigarette packets and thinks, 'I don't smoke, but I'll buy one,' or something of that kind. There has not been a lot of evidence to show how effective that has been. What is clear though is the cost that the imposition of that measure has provided for small business retailers and that it is another example of how small business retailers are the meat in the sandwich.

When we come to the area of penalties that are faced for the sale of tobacco to minors, I entirely agree that they should be penalised where it occurs, but the sale process actually involves a purchaser. What I do not understand is why this is so vigorously pursued. Even my own city, the city of Frankston, recently on 16 March boasted about how they had gone after 60 retailers to see whether they were upholding the law of not selling tobacco products to people under the age of 18. There were a number who had not done the right thing. The circumstances under which people are not doing the right thing need to be explored. That is a discussion for another day.

What I find fascinating is the case of a mum-and-dad owned corner store that has half-a-dozen big, strapping 16-year-old lads come in and give them plenty of advice about what they should be selling to them and plenty of indications that, if they are not going to make that sale to them, there will be all sorts of consequences for their business. There is plenty of intimidation to say that retailers should engage in a transaction with people who may well assert that they are over the age of 18 but refuse to provide any evidence that they are. You might have someone who is somewhat taller than me—and I am somewhat over the age of 18—looking very much over the age of 18, but who is perhaps not.

Mr Windsor interjecting—

Mr BILLSON: Thank you for the interjection. What happens in that case is that the entire weight of the law lands on the retailer. Is this fair and reasonable? Surely, there should be some responsibility carried by the person who is under the age of 18, who is seeking to purchase or is in possession of tobacco, but there is no such requirement. The small business community is saying, 'Hang on, this is another example where we are the meat in the sandwich.' The penalties that they face for selling tobacco to under-age customers are steep and may involve a loss of licence while the under-age person seeking to buy or in possession of the tobacco faces no penalty.

Retailers then point to the growth of the illegal and counterfeit market that seems immune from enforcement activities while there is brazen selling going on in community markets on street stalls and even, in some cases, with an offer of home delivery of chop-chop—illegal tobacco products. That seems to be something that cannot be detected by enforcement authorities, yet there is this coordinated effort to crack down on small business retailers. Even the large supermarkets are positioning themselves in the market. Just as we have seen them push their own brand with other products, right now Coles is importing cheaper cigarettes from Germany, labelled 'Made for Australia', so that they can optimise their profit margins and sell at a cheaper price. How is that helping the issue of managing the uptake of tobacco in Australia? All these things are going on and small business people are saying, 'Where is the pro-active education campaign to senior primary school students about the dangers of smoking?' There is a price signal benefit from the continual price rises for legitimate retailers, but there is little action on excise lost on chop chop or on the health and safety concerns of illegal products. There is the sense that any intervention will do without the need to provide supporting evidence.

This is the atmosphere within which the small-business community operates. I thought there was some scope to consider even more health warnings on the front of the package, even greater visual displays, rather than the generic name and variant which is displayed in a number of locations under the government's proposal. Have more graphic health warnings, have greater warnings for smokers and those considering it, and in return maybe a small stripe on the bottom of the packet—not something that is highly visible, but something that at least the small-business person could put the cigarettes top down in their chutes, readily identify them and not at another burden to their cost. That would also go some way to guarding against what the minister says are efforts 'designed to remove the last vestige of glamour from tobacco products'. We could have done more, we could have improved this with some fine tuning, but for that to occur we need those opposite to be willing as well and that has not happened.